Citation Nr: 0431117
Decision Date: 11/24/04 Archive Date: 11/29/04
DOCKET NO. 95-36 841 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUES
1. Entitlement to service connection for chronic hearing
loss disability.
2. Entitlement to service connection for chronic tinnitus.
3. Entitlement to service connection for chronic right ankle
injury residuals.
4. Entitlement to service connection for a chronic
gastrointestinal disorder to include colon polyp resection
residuals.
5. Entitlement to service connection for a chronic
disability manifested by hair loss to include male pattern
baldness claimed as due to an undiagnosed illness.
6. Entitlement to service connection for a chronic fatigue
syndrome claimed as due to an undiagnosed illness.
7. Entitlement to service connection for a chronic chest
disorder manifested by pain claimed as due to an undiagnosed
illness.
8. Entitlement to service connection for hypertension.
9. Entitlement to service connection for a chronic
disability manifested by thickened saliva claimed as due to
an undiagnosed illness.
10. Entitlement to service connection for a chronic eye
disorder manifested by eye irritation claimed as due to an
undiagnosed illness.
11. Entitlement to an effective date prior to March 1, 2000,
for the award of a 100 percent schedular evaluation for the
veteran's post-traumatic stress disorder with sleep problems
and memory loss.
12. Entitlement to an initial disability evaluation in
excess of 40 percent for the veteran's lumbosacral strain
with degenerative disc disease.
14. Entitlement to an effective date prior to January 14,
2004, for the award of service connection for the veteran's
lumbosacral strain and degenerative disc disease.
15. Entitlement to an initial evaluation in excess of 10
percent for the veteran's atopic dermatitis.
16. Entitlement to an initial disability evaluation in
excess of 10 percent for the veteran's irritable bowel
syndrome.
17. Entitlement to an effective date prior to November 2,
1994, for the award of service connection for the veteran's
irritable bowel syndrome.
18. Entitlement to an initial compensable disability
evaluation for the veteran's bronchitis.
19. Entitlement to an initial compensable disability
evaluation for the veteran's hemorrhoids.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had certified active service from October 1965 to
October 1967 and from September 1991 to September 1992 and
additional duty with the North Carolina Army National Guard.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a February 1995 rating decision of the
Winston-Salem, North Carolina, Regional Office (RO) which, in
pertinent part, established service connection for urticaria
and hemorrhoids; assigned noncompensable evaluations for
those disabilities; denied service connection for hearing
loss, tinnitus, chronic right ankle injury residuals, a low
back disorder, post-traumatic stress disorder (PTSD), a colon
disorder to include polyps and a rectal disorder, a chest
disorder manifested by pain, a chronic eye disorder to
include irritation, and hypertension; determined that the
veteran had not submitted well-grounded claims of entitlement
to service connection for a chronic disorder manifested by
hair loss claimed as due to an undiagnosed illness, a chronic
sleep disorder, a gastrointestinal disorder manifested by
diarrhea, a respiratory disorder claimed as due to an
undiagnosed illness, chronic fatigue syndrome, a chronic
disability characterized by memory loss, and a chronic
disability manifested by thickened saliva; and denied those
claims. In August 1995, the veteran submitted a notice of
disagreement. In August 1995, the RO issued a statement of
the case (SOC) to the veteran and his accredited
representative. In September 1995, the veteran submitted a
Appeal to the Board (VA Form 9) from the denial of service
connection for hearing loss disability, tinnitus, a low back
disorder, a chronic disorder manifested by hair loss, a
chronic sleep disorder, a chronic colon disorder, a chronic
disorder manifested by diarrhea, a respiratory disorder,
chronic fatigue syndrome, a chronic disorder manifested by
memory loss, and hypertension. In December 1995, the
accredited representative submitted a substantive appeal from
the denial of service connection for chronic right ankle
injury residuals, PTSD, a chronic chest disorder, a chronic
disorder manifested by thickened saliva, and chronic eye
disorder.
In January 1998, the RO granted service connection for a
chronic gastrointestinal disorder manifested by stomach pain
and diarrhea due to an undiagnosed illness; assigned a 10
percent evaluation for that disability; effectuated the award
as of November 2, 1994; granted service connection for
bronchitis; assigned a noncompensable evaluation for that
disability; effectuated the award as of September 22, 1992;
recharacterized the veteran's service-connected skin
disability as a fungal infection of the feet and the groin
with a history of urticaria evaluated as 10 percent
disabling; and effectuated the award as of September 22,
1992. In March 1998, the RO, in pertinent part, granted
service connection for PTSD with sleep problems and memory
loss; assigned a 30 percent evaluation for that disability;
and effectuated the award as of March 4, 1997.
In April 1998, the veteran submitted a notice of disagreement
with both the evaluation and effective date assigned for his
chronic gastrointestinal disorder manifested by stomach pain
and diarrhea. In June 1998, the veteran submitted a notice
of disagreement with the evaluation assigned for his
respiratory disorder.
In July 2000, the RO granted a temporary 100 percent
evaluation for the veteran's PTSD under the provisions of 38
C.F.R. § 4.29 for the period between January 10, 2000, and
February 29, 2000; granted a 70 percent evaluation for his
PTSD effective on and after March 1, 2000; and
recharacterized the veteran's service-connected
gastrointestinal disability as irritable bowel syndrome
evaluated as 10 percent disabling.
In June 2001, the RO increased the evaluation for the
veteran's PTSD from 70 to 100 percent and effectuated the
award as of March 1, 2000. In August 2001, the veteran
submitted a notice of disagreement with the effective date
for the award of a 100 percent schedular evaluation for his
PTSD with sleep problems and memory loss. In February 2002,
the RO issued a SOC to the veteran and his accredited
representative. In May 2002, the veteran submitted an Appeal
to the Board (VA Form 9) from the denial of an earlier
effective date for the award of a 100 percent evaluation for
his PTSD with sleep problems and memory loss.
In April 2004, the RO granted service connection for chronic
lumbosacral strain with degenerative disc disease; assigned a
40 percent evaluation for that disability; effectuated the
award as of January 14, 1994; and recharacterized the
veteran's service-connected skin disorder as atopic
dermatitis evaluated as 10 percent disabling. In July 2004,
the veteran submitted a notice of disagreement with both the
evaluation and effective date assigned for his lumbar spine
disorder. In August 2004, the RO issued a SOC to the veteran
and his accredited representative which addressed the
evaluation and effective date assigned for his lumbar spine
disorder. In August 2004, the accredited representative
submitted a substantive appeal from the April 2004 rating
decision.
In May 2004, the RO reviewed the issues of service connection
for a chronic disorder manifested by hair loss claimed as due
to an undiagnosed illness, chronic fatigue syndrome, and a
chronic disability manifested by thickened saliva on the
merits and denied the claims. The veteran has been
represented throughout this appeal by the North Carolina
Division of Veterans Affairs.
The Board observes that the veteran has appealed from the
initial evaluations assigned for his service-connected lumbar
spine, skin, hemorrhoid, and bronchial disabilities. In
Fenderson v. West, 12 Vet. App. 119 (1999), the United States
Court of Appeals for Veterans Claims (Court) addressed a
similar appeal and directed that it was specifically not a
claim for an increased disability evaluation. However, the
Court did not provided a specific name for the issue in lieu
of "increased disability evaluation." In the absence of
such direction, the Board has framed the issues as the
veteran's entitlement to an initial evaluation in excess of
40 percent for his lumbosacral strain with degenerative disc
disease; an initial evaluation in excess of 10 percent for
his atopic dermatitis; and initial compensable evaluations
for his hemorrhoids and bronchitis. The veteran is not
prejudiced by such action. The Board has not dismissed any
issue and the law and regulations governing the evaluation of
disabilities is the same regardless of how the issue is
styled.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. The Department of Veterans
Affairs (VA) will notify the veteran if further action is
required on his part.
The veteran submitted informal claims of entitlement to
service connection for a chronic ear disorder manifested by
pain, a chronic cervical spine disorder to include neck pain,
a chronic disability manifested by dizziness, a chronic anal
disorder to include fissures, a chronic bilateral shoulder
disorder, chronic radiation exposure residuals, and chronic
Agent Orange exposure residuals. It appears that the RO has
not had an opportunity to act upon the claims. Absent an
adjudication, a notice of disagreement, a SOC, and a
substantive appeal, the Board does not have jurisdiction over
the issues. Rowell v. Principi, 4 Vet. App. 9 (1993); Roy v.
Brown, 5 Vet. App. 554 (1993); Black v. Brown, 10 Vet. App.
279, 284 (1997); Shockley v. West, 11 Vet. App. 208 (1998).
Jurisdiction does matter and it is not "harmless" when the
VA fails to consider threshold jurisdictional issues during
the claim adjudication process. Furthermore, this Veterans
Law Judge cannot have jurisdiction of the issues. 38 C.F.R.
§ 19.13 (2004). The United States Court of Appeals for
Veterans Claims (Court) has noted that:
Furthermore, 38 U.S.C.A. § 7105 (West
1991) establishes a series of very
specific, sequential, procedural steps
that must be carried out by a claimant
and the RO or other "agency of original
jurisdiction" (AOJ) (see Machado v.
Derwinski, 928 F.2d 389, 391 (Fed. Cir.
1991)) before a claimant may secure
"appellate review" by the BVA.
Subsection (a) of that section
establishes the basic framework for the
appellate process, as follows:
"Appellate review will be initiated by a
notice of disagreement [(NOD)] and
completed by a substantive appeal after a
statement of the case is furnished as
prescribed in this section." Bernard v.
Brown, 4 Vet. App. 384 (1994).
All steps required for jurisdiction have not been satisfied.
More recently, the Court again established that jurisdiction
counts. Specifically, the Court could not remand a matter
over which it has no jurisdiction. Hazan v. Gober, 10 Vet.
App. 511 (1997). Therefore, the issues are referred to the
RO for action as may be appropriate. Black v. Brown, 10 Vet.
App. 279 (1997). If the veteran wishes to appeal from the
decision, he has an obligation to file a timely notice of
disagreement and a timely substantive appeal following the
issuance of the statement of the case. 38 C.F.R. § 20.200
(2004).
REMAND
The veteran's September 1992 Veteran's Application for
Compensation or Pension (VA Form 21-526) indicates that he
enlisted in the North Carolina National Guard in January
1975. A January 1997 psychological evaluation from John
Rucker, Ed.D., indicates that the veteran retired from the
North Carolina National Guard in 1995. The veteran's
additional periods of active service, active duty for
training, and inactive duty for training with the North
Carolina National Guard have not been verified and the
complete service medical records associated with such duty
have not been requested for incorporation into the record.
The VA should obtain all relevant VA and private treatment
records which could potentially be helpful in resolving the
veteran's claims. Murphy v. Derwinski, 1 Vet. App. 78, 81-82
(1990). The Board finds such evidence is needed to
adequately adjudicate the multiple issues of the veteran's
entitlement to both service connection and earlier effective
dates for the award of service connection.
In reviewing the report of the most recent VA examination for
compensation purposes conducted in May 2004 which addressed
the veteran's service-connected atopic dermatitis, the Board
notes that the evaluation was conducted without the veteran's
claims files. Examinations for compensation and pension
purposes conducted without contemporaneous review of the
veteran's claims files are deficient for rating purposes.
Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992).
The report of a February 2004 VA rectum and anus examination
for compensation purposes specifically notes that the veteran
exhibited no external hemorrhoids. The VA examiner made no
findings as to whether the veteran exhibited any internal
hemorrhoids. The VA's statutory duty to assist the veteran
includes the duty to conduct a thorough and contemporaneous
examination so that the evaluation of the claimed disability
will be a fully informed one. Green v. Derwinski, 1 Vet.
App. 121, 124 (1991).
The veteran advances on appeal that an effective date prior
to March 4, 1997, is warranted for the award of service
connection for PTSD with sleep problems and memory loss.
The RO has not had an opportunity to act upon the claim. The
Board finds that the issue of an effective date prior to
March 4, 1997, for the award of service connection for the
veteran's PTSD with sleep problems and memory loss to be
inextricably intertwined with the certified issue of an
effective date prior to March 1, 2000, for the award of a 100
percent schedular evaluation for the veteran's PTSD with
sleep problems and memory loss. Harris v. Derwinski, 1 Vet.
App. 180 (1991). The fact that an issue is inextricably
intertwined does not establish that the Board has
jurisdiction of the issue, only that the Board cannot fairly
proceed while there are outstanding matters that must be
addressed by the RO in the first instance.
The veteran submitted timely notices of disagreement with
both the 10 percent evaluation and the effective date
assigned for his irritable bowel syndrome and the
noncompensable evaluation assigned for his bronchitis. The
RO has not issued either a SOC or a SSOC to the veteran and
his accredited representative which addresses those issues.
The Court has directed that where a veteran has submitted a
timely notice of disagreement with an adverse decision and
the RO has not subsequently issued a SOC addressing the
issue, the Board should remand the issue to the RO for
issuance of a SOC. Manlincon v. West, 12 Vet. App. 238,
240-241 (1999). Accordingly, this case is REMANDED for the
following action:
1. The RO should contact the National
Personnel Records Center and/or the
appropriate service entity and request
that (1) it verify the veteran's complete
periods of active service, active duty,
active duty for training, and inactive
duty for training with the North Carolina
National Guard and (2) forward all
available service medical records
associated with such duty for
incorporation into the record.
2. The RO should contact then veteran
and request that he provide information
as to all treatment of his chronic skin,
hemorrhoid, and lumbosacral spine
disabilities after 2003, including the
names and addresses of all health care
providers. Upon receipt of the requested
information and the appropriate releases,
the RO should then contact all identified
health care providers and request that
they forward copies of all available
clinical documentation pertaining to
treatment of the veteran, not already of
record, for incorporation into the
record.
3. The RO should then request that
copies of all VA clinical documentation
pertaining to the veteran's treatment
after August 2004, not already of record,
be forwarded for incorporation into the
record.
4. The RO should then schedule the
veteran for VA examination for
compensation purposes in order to
determine the current nature and severity
of his chronic hearing loss disability,
tinnitus, right ankle injury residuals,
colon polyp resection residuals, and
hypertension; alleged chronic disability
manifested by hair loss, chronic fatigue
syndrome, chronic chest disorder, chronic
disability manifested by thickened
saliva, and chronic eye disorder; and his
service-connected lumbosacral strain with
degenerative disc disease, atopic
dermatitis, and hemorrhoids. All
indicated tests and studies should be
accomplished and the findings then
reported in detail.
The examiner or examiners should advance
an opinion addressing the following
questions:
(1) what is the etiology of any
identified hearing loss disability,
tinnitus, right ankle disorder, colon
disorder, hypertension, chronic
disability manifested by hair loss,
chronic fatigue syndrome, chronic chest
disorder, chronic disability manifested
by thickened saliva, and chronic eye
disorder and
(2) is it more likely than not (i.e.,
probability greater than 50 percent); at
least as likely as not (i.e., probability
of 50 percent); or less likely than not
(i.e., probability less than 50 percent)
that any identified chronic hearing loss
disability, tinnitus, right ankle
disorder, colon disorder, hypertension,
chronic disability manifested by hair
loss, chronic fatigue syndrome, chronic
chest disorder, chronic disability
manifested by thickened saliva, and
chronic eye disability had its onset
during active service, is in any other
way causally related to active service or
is etiological related to the veteran's
service-connected disabilities, or
increased in severity beyond its natural
progression as the result of his
service-connected disabilities?
? The examiner or examiners should
identify whether the veteran
exhibits either external or internal
hemorrhoids; the limitation of
activity imposed by the veteran's
service-connected lumbar disability;
and any associated pain with a full
description of the effect of the
disability upon his ordinary
activities.
? The examiner or examiners should
fully describe any weakened
movement, excess fatigability, and
incoordination present.
Determinations on whether the
veteran exhibits pain with use of
the lumbar spine should be noted and
described. If feasible, the
determinations concerning pain,
weakness and fatigability should be
portrayed in terms of the degree of
additional range of motion loss or
ankylosis. If such a determination
is not feasible, this should be
stated for the record and the
reasons provided.
Send the claims folders to the examiner
or examiners for review. The examination
report should specifically state that
such a review was conducted.
5. The RO should then adjudicate the
veteran's entitlement to an effective
date prior to March 4, 1997, for the
award of service connection for his PTSD
with sleep problems and memory loss. The
veteran and his accredited representative
should be informed in writing of the
resulting decision and his associated
appellate rights. The issue is not on
appeal unless there is a notice of
disagreement and a substantive appeal as
to the issue.
6. The RO should then issue a SOC to the
veteran and his accredited representative
which addresses the issues of the
veteran's entitlement to an initial
evaluation in excess of 10 percent for
his irritable bowel syndrome; an
effective date prior to for the award of
service connection for irritable bowel
syndrome; and an initial compensable
evaluation for his bronchitis. The
veteran and his accredited representative
should be given the opportunity to
respond to the SOC.
7. The RO should then readjudicate the
veteran's entitlement to following
issues.
? Service connection for chronic
hearing loss disability, chronic
tinnitus, chronic right ankle injury
residuals, a chronic
gastrointestinal disorder to include
colon polyp resection residuals, a
chronic disability manifested by
hair loss to include male pattern
baldness claimed as due to an
undiagnosed illness, chronic fatigue
syndrome claimed as due to an
undiagnosed illness, a chronic chest
disorder manifested by pain claimed
as due to an undiagnosed illness,
hypertension, a chronic disability
manifested by thickened saliva
claimed as due to an undiagnosed
illness, and a chronic eye disorder
manifested by eye irritation claimed
as due to an undiagnosed illness.
? An effective date prior to March 1,
2000, for the award of a 100 percent
schedular evaluation for his PTSD
with sleep problems and memory loss.
? An initial evaluation in excess of
40 percent for his lumbosacral
strain with degenerative disc
disease; an effective date prior to
January 14, 2004, for the award of
service connection for his
lumbosacral strain and degenerative
disc disease.
? An initial evaluation in excess of
10 percent for his atopic
dermatitis, and an initial
compensable evaluation for his
hemorrhoids with express
consideration of the provisions of
38 C.F.R. § 3.310(a) (2004) and the
Court's holding in Allen v. Brown, 7
Vet. App. 439 (1995).
If the benefits sought on appeal remain
denied, the veteran and his accredited
representative should be issued a
supplemental statement of the case (SSOC)
which addresses all relevant actions
taken on the claims for benefits, to
include a summary of the evidence and
applicable law and regulations
considered, since the issuance of the
last SSOC. The veteran should be given
the opportunity to respond to the SSOC.
The veteran is free to submit additional evidence and
argument while the case is in remand status. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The veteran's appeal must be afforded expeditious treatment
by the RO. The law requires that all claims that are
remanded by the Board or by the Court for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
ROs to provide expeditious handling of all cases that have
been remanded by the Board and the Court. See M21-1, Part
IV, paras. 8.44-8.45 and 38.02-38.03.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).